Seven Highlights From the Department of Education Title IX Final Regulations

Firm Publication

On May 5, the Department of Education released its long-awaited final regulations under Title IX of the Higher Education Act. At more than 2,000 pages, the final regulations attempt to address the more than 120,000 comments received by the Department in response to the proposed rule issued in November 2018. The Department has issued useful summaries, both of the regulations and the differences between the proposed and final regulations.

While we are still digesting all of this information, the final regulations have an effective date of August 14, 2020. The Department states that it took the COVID-19 pandemic into account in setting the effective date and found that 90 days is sufficient time to implement the regulations even in the current circumstances—a conclusion that the American Council on Education appropriately termed “cruel.”

Given the August 14 effective date, here are highlights of seven of the most important things that colleges and universities should start working on now:

Decide Who Will Serve as Mandatory Reporters

The final regulations establish that colleges and universities are only required to take action in response to allegations of sexual harassment of which they have actual notice; in the form of notice to the Title IX coordinator or another official with authority to institute corrective  measures. This means that under the final regulations colleges and universities must determine for themselves whether, and how broadly, to adopt or maintain “mandatory reporting” requirements under which certain employees are required to report allegations of sexual harassment to the Title IX coordinator. The Department states that “whether universal mandatory reporting for postsecondary institutions benefits victims or harms victims is a complicated issue as to which research is conflicting” and thus leaves institutions with the flexibility to decide for themselves. Many colleges and universities currently have universal mandatory reporting requirements and will need to carefully consider whether such policies will continue to best serve their institutions. Faculty can be expected to have strong views on these decisions that are best taken into account if a new policy is to be successfully implemented. And where policies as to mandatory reporting are changed, training should be conducted to ensure that faculty and employees understand their changed responsibilities.

The final regulations make clear that notice to the Title IX coordinator—even by third parties as to harassment suffered by someone else—is actual notice of harassment. Although a “formal complaint” by the complainant (or in certain instances the Title IX coordinator) is necessary to begin an investigation, the Title IX coordinator is required to take certain actions (e.g., offer supportive measures) as to all complaints received—even those initiated by third parties.

Review Your Definition of Sexual Harassment

The final regulations provide that for Title IX purposes, sexual harassment means conduct on the basis of sex that includes one or more of the following:

  • An employee of the institution conditioning the provision of a benefit or service on an individual’s participation in unwanted sexual conduct (quid pro quo harassment).
  • Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.
  • Sexual assault, dating violence, domestic violence or stalking.

In addition, to constitute actionable sexual harassment under Title IX, the misconduct must occur in an educational program or activity of the institution. Responding to comments to the proposed regulations which raised concerns that the Department was eliminating colleges’ responsibility under Title IX for any misconduct occurring off-campus, the final regulations define “educational program or activity” to include “locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs” and “any building owned or controlled by a student organization that is officially recognized by a post-secondary institution.” Finally, actionable sexual harassment under Title IX only applies to persons within the United States.

The final regulations clarify that colleges and universities are free to adopt definitions of sexual harassment that go beyond that specified in the Title IX regulations,  and to impose discipline (and provide supportive measures) with regard to such sexual harassment, but that institutions must be clear that such conduct is not covered by Title IX. Institutions accordingly should be thoughtful in their definition of sexual harassment and also in clarifying conduct that is subject to student discipline (and under what procedure) even if it does not fall within Title IX.

Choose a Burden of Proof

The final regulations allow institutions to choose whether to use the preponderance of the evidence or clear and convincing evidence as the burden of proof in determining responsibility for sexual harassment under Title IX. The final regulations removed the requirement in the proposed regulations that an institution could only use the preponderance of the evidence standard if that standard were used for all other student conduct violations with the same possible maximum sanction. The final regulations continue to require, however, that the same burden of proof be used in determinations of responsibility for students as are used in Title IX proceedings concerning all other employees, including faculty. This appears to leave open the possibility for an institution to use one standard for complaints handled only under Title VII (that is, employee on employee cases), while using the other standard for cases involving student complainants under Title IX.

Establish (or Revise) Your System for “Live” Hearings

The final regulations jettison the idea of a “safe harbor” for institutions that employ processes consistent with the regulations and instead simply require all institutions to employ “grievance processes” consistent with the final regulations, which are very prescriptive. These processes must include a “live” hearing for determining responsibility for Title IX offenses. The live hearings can be accomplished, at the institution’s discretion, virtually, with technology that allows all participants to simultaneously see and hear each other. At the live hearing, all witnesses and parties must be subject to cross-examination. The decision-maker(s) at the hearing must determine whether questions are relevant and must explain, in real-time, why a question is not relevant and will not be asked. Parties must use an advisor (who may be an attorney) to conduct the cross-examination. If a party does not have an advisor, the institution must provide an advisor, of the institution’s choosing, to ask cross-examination questions provided by the party. (This is an important change from the proposed regulations which required the institution to provide an advisor “aligned with the party.”) If a witness or party is not subject to cross examination at the live hearing, his or her statement may not be used in making a determination of responsibility.

If your institution does not currently have hearings as part of the process, you will need to decide at least the following:

  • Who will be the decision-maker(s) at the hearings?
  • How will the decision-makers be adequately trained?
  • Will hearings be conducted in person when safe to do so or always virtually?
  • When hearings are conducted virtually, what platform will be used that will provide sufficient protection for confidential information?
  • Who will serve as advisors for parties who do not provide their own?
  • Although not required, where one party has an attorney as their advisor, will the institution provide an attorney for the other party?

Establish (or Revise) Your System for Appeals

An important change in the final regulations is a requirement that all institutions provide for appeals as part of their grievance processes. The final regulations further specify three grounds on which appeals must be allowed:

  • Procedural irregularity that affected the outcome.
  • Newly discovered evidence that was not reasonably available at the time of the determination of responsibility that could affect the outcome.
  • Bias or conflict of interest of the Title IX coordinator, investigator or any decision-maker, either specifically in the case or against complainants or respondents in general.

Institutions may include additional bases for appeals. In addition, the parties must be allowed to appeal an institution’s decision to dismiss a formal complaint. Appeals do not have to be conducted through live hearings, but appeals decision-makers must not be the Title IX coordinator, an investigator, or have been a decision-maker at the hearing stage of the case. All appeals must be available equally to complainants and respondents.

Consider Establishing a System to Vet Decision Makers for Conflict of Interest

The final regulations allow the parties to appeal a decision on the basis that the Title IX coordinator, an investigator or a decision-maker had a bias or conflict of interest against the complainant or respondent specifically or in general. This language could provide an incentive for attorneys representing the parties to scour the writings and social media accounts of the decision-makers in campus proceedings in an attempt to show that they are biased against complainants or respondents “in general.” Institutions should consider establishing a system for documenting potential specific conflicts of interest by decision-makers and should also consider whether any materials readily available to the public could be used to show a “general” bias on the part of Title IX coordinators, investigators and those serving as decision-makers.

Review Your Definition of Retaliation

The final regulations include a provision requiring that institutions prohibit retaliation. While such a requirement might appear on its face to be unremarkable, the wording of the provision leaves some cause for concern. The final regulations prohibit retaliation against any person because the person makes a report or complaint, testifies, assists, or participates, or refuses to participate in any manner in any investigation, proceeding, or hearing under the regulations. While the Department states that this language is modeled on the anti-retaliation regulations under Title VI of the Civil Rights Act, the Title VI regulations lack the language “or refuses to participate.” On its face, the language that prohibits an institution from taking any action that would “threaten or coerce” any person who “refuses to participate in” a Title IX hearing or investigation could prevent a college or university from requiring its employees (including faculty and staff) to participate in an investigation or hearing. It is hard to imagine that the Department intended to provide a retaliation remedy for an employee, say, an athletic coach, who was disciplined by an institution for refusing to participate in a Title IX investigation. But the language of the retaliation provision appears to so provide. Complaints of retaliation are to be handled under the same processes as complaints of sexual harassment.

In addition, under the final regulations, retaliation includes bringing code of conduct charges, whether or not they include sexual misconduct charges, if they arise out of the same facts or circumstances as a report of sexual harassment, and are brought for the purpose of interfering with any right secured by Title IX or the regulations. The Department reported concerns of students being hesitant to come forward with complaints of sexual harassment for fear of being charged with other conduct charges, like underage drinking. While the final regulations do not require “amnesty” provisions under which institutions promise students who come forward with sexual misconduct allegations that they will not be charged with other violations, they also make clear that where other such charges are brought with the purpose of interfering with or deterring students from bringing complaints under Title IX, they constitute prohibited retaliation.

Conclusion

These seven points only scratch the surface of the very detailed, highly proscriptive, provisions of the final regulations. There are a number of interest groups that have publicly stated that they intend to bring suit against the Department in an attempt to prevent the final regulations from taking effect. The Department clearly had those potential suits in mind and wrote the final regulations so as to bolster its defense to any such suits. The final regulations reflect the Department’s attempt to respond to the many comments it received on the proposed regulations fully and carefully, including justifying its authority under the law to promulgate the detailed regulations. While we will monitor any such litigation, it is impossible to know, prior to the filing of such suits, whether a court will act to enjoin the final regulations before they go into effect.

If you have questions or seek assistance in coming into compliance with the final regulations, please contact the author.

Related Professionals
Firm Publication

On May 5, the Department of Education released its long-awaited final regulations under Title IX of the Higher Education Act. At more than 2,000 pages, the final regulations attempt to address the more than 120,000 comments received by the Department in response to the proposed rule issued in November 2018. The Department has issued useful summaries, both of the regulations and the differences between the proposed and final regulations.

While we are still digesting all of this information, the final regulations have an effective date of August 14, 2020. The Department states that it took the COVID-19 pandemic into account in setting the effective date and found that 90 days is sufficient time to implement the regulations even in the current circumstances—a conclusion that the American Council on Education appropriately termed “cruel.”

Given the August 14 effective date, here are highlights of seven of the most important things that colleges and universities should start working on now:

Decide Who Will Serve as Mandatory Reporters

The final regulations establish that colleges and universities are only required to take action in response to allegations of sexual harassment of which they have actual notice; in the form of notice to the Title IX coordinator or another official with authority to institute corrective  measures. This means that under the final regulations colleges and universities must determine for themselves whether, and how broadly, to adopt or maintain “mandatory reporting” requirements under which certain employees are required to report allegations of sexual harassment to the Title IX coordinator. The Department states that “whether universal mandatory reporting for postsecondary institutions benefits victims or harms victims is a complicated issue as to which research is conflicting” and thus leaves institutions with the flexibility to decide for themselves. Many colleges and universities currently have universal mandatory reporting requirements and will need to carefully consider whether such policies will continue to best serve their institutions. Faculty can be expected to have strong views on these decisions that are best taken into account if a new policy is to be successfully implemented. And where policies as to mandatory reporting are changed, training should be conducted to ensure that faculty and employees understand their changed responsibilities.

The final regulations make clear that notice to the Title IX coordinator—even by third parties as to harassment suffered by someone else—is actual notice of harassment. Although a “formal complaint” by the complainant (or in certain instances the Title IX coordinator) is necessary to begin an investigation, the Title IX coordinator is required to take certain actions (e.g., offer supportive measures) as to all complaints received—even those initiated by third parties.

Review Your Definition of Sexual Harassment

The final regulations provide that for Title IX purposes, sexual harassment means conduct on the basis of sex that includes one or more of the following:

  • An employee of the institution conditioning the provision of a benefit or service on an individual’s participation in unwanted sexual conduct (quid pro quo harassment).
  • Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.
  • Sexual assault, dating violence, domestic violence or stalking.

In addition, to constitute actionable sexual harassment under Title IX, the misconduct must occur in an educational program or activity of the institution. Responding to comments to the proposed regulations which raised concerns that the Department was eliminating colleges’ responsibility under Title IX for any misconduct occurring off-campus, the final regulations define “educational program or activity” to include “locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs” and “any building owned or controlled by a student organization that is officially recognized by a post-secondary institution.” Finally, actionable sexual harassment under Title IX only applies to persons within the United States.

The final regulations clarify that colleges and universities are free to adopt definitions of sexual harassment that go beyond that specified in the Title IX regulations,  and to impose discipline (and provide supportive measures) with regard to such sexual harassment, but that institutions must be clear that such conduct is not covered by Title IX. Institutions accordingly should be thoughtful in their definition of sexual harassment and also in clarifying conduct that is subject to student discipline (and under what procedure) even if it does not fall within Title IX.

Choose a Burden of Proof

The final regulations allow institutions to choose whether to use the preponderance of the evidence or clear and convincing evidence as the burden of proof in determining responsibility for sexual harassment under Title IX. The final regulations removed the requirement in the proposed regulations that an institution could only use the preponderance of the evidence standard if that standard were used for all other student conduct violations with the same possible maximum sanction. The final regulations continue to require, however, that the same burden of proof be used in determinations of responsibility for students as are used in Title IX proceedings concerning all other employees, including faculty. This appears to leave open the possibility for an institution to use one standard for complaints handled only under Title VII (that is, employee on employee cases), while using the other standard for cases involving student complainants under Title IX.

Establish (or Revise) Your System for “Live” Hearings

The final regulations jettison the idea of a “safe harbor” for institutions that employ processes consistent with the regulations and instead simply require all institutions to employ “grievance processes” consistent with the final regulations, which are very prescriptive. These processes must include a “live” hearing for determining responsibility for Title IX offenses. The live hearings can be accomplished, at the institution’s discretion, virtually, with technology that allows all participants to simultaneously see and hear each other. At the live hearing, all witnesses and parties must be subject to cross-examination. The decision-maker(s) at the hearing must determine whether questions are relevant and must explain, in real-time, why a question is not relevant and will not be asked. Parties must use an advisor (who may be an attorney) to conduct the cross-examination. If a party does not have an advisor, the institution must provide an advisor, of the institution’s choosing, to ask cross-examination questions provided by the party. (This is an important change from the proposed regulations which required the institution to provide an advisor “aligned with the party.”) If a witness or party is not subject to cross examination at the live hearing, his or her statement may not be used in making a determination of responsibility.

If your institution does not currently have hearings as part of the process, you will need to decide at least the following:

  • Who will be the decision-maker(s) at the hearings?
  • How will the decision-makers be adequately trained?
  • Will hearings be conducted in person when safe to do so or always virtually?
  • When hearings are conducted virtually, what platform will be used that will provide sufficient protection for confidential information?
  • Who will serve as advisors for parties who do not provide their own?
  • Although not required, where one party has an attorney as their advisor, will the institution provide an attorney for the other party?

Establish (or Revise) Your System for Appeals

An important change in the final regulations is a requirement that all institutions provide for appeals as part of their grievance processes. The final regulations further specify three grounds on which appeals must be allowed:

  • Procedural irregularity that affected the outcome.
  • Newly discovered evidence that was not reasonably available at the time of the determination of responsibility that could affect the outcome.
  • Bias or conflict of interest of the Title IX coordinator, investigator or any decision-maker, either specifically in the case or against complainants or respondents in general.

Institutions may include additional bases for appeals. In addition, the parties must be allowed to appeal an institution’s decision to dismiss a formal complaint. Appeals do not have to be conducted through live hearings, but appeals decision-makers must not be the Title IX coordinator, an investigator, or have been a decision-maker at the hearing stage of the case. All appeals must be available equally to complainants and respondents.

Consider Establishing a System to Vet Decision Makers for Conflict of Interest

The final regulations allow the parties to appeal a decision on the basis that the Title IX coordinator, an investigator or a decision-maker had a bias or conflict of interest against the complainant or respondent specifically or in general. This language could provide an incentive for attorneys representing the parties to scour the writings and social media accounts of the decision-makers in campus proceedings in an attempt to show that they are biased against complainants or respondents “in general.” Institutions should consider establishing a system for documenting potential specific conflicts of interest by decision-makers and should also consider whether any materials readily available to the public could be used to show a “general” bias on the part of Title IX coordinators, investigators and those serving as decision-makers.

Review Your Definition of Retaliation

The final regulations include a provision requiring that institutions prohibit retaliation. While such a requirement might appear on its face to be unremarkable, the wording of the provision leaves some cause for concern. The final regulations prohibit retaliation against any person because the person makes a report or complaint, testifies, assists, or participates, or refuses to participate in any manner in any investigation, proceeding, or hearing under the regulations. While the Department states that this language is modeled on the anti-retaliation regulations under Title VI of the Civil Rights Act, the Title VI regulations lack the language “or refuses to participate.” On its face, the language that prohibits an institution from taking any action that would “threaten or coerce” any person who “refuses to participate in” a Title IX hearing or investigation could prevent a college or university from requiring its employees (including faculty and staff) to participate in an investigation or hearing. It is hard to imagine that the Department intended to provide a retaliation remedy for an employee, say, an athletic coach, who was disciplined by an institution for refusing to participate in a Title IX investigation. But the language of the retaliation provision appears to so provide. Complaints of retaliation are to be handled under the same processes as complaints of sexual harassment.

In addition, under the final regulations, retaliation includes bringing code of conduct charges, whether or not they include sexual misconduct charges, if they arise out of the same facts or circumstances as a report of sexual harassment, and are brought for the purpose of interfering with any right secured by Title IX or the regulations. The Department reported concerns of students being hesitant to come forward with complaints of sexual harassment for fear of being charged with other conduct charges, like underage drinking. While the final regulations do not require “amnesty” provisions under which institutions promise students who come forward with sexual misconduct allegations that they will not be charged with other violations, they also make clear that where other such charges are brought with the purpose of interfering with or deterring students from bringing complaints under Title IX, they constitute prohibited retaliation.

Conclusion

These seven points only scratch the surface of the very detailed, highly proscriptive, provisions of the final regulations. There are a number of interest groups that have publicly stated that they intend to bring suit against the Department in an attempt to prevent the final regulations from taking effect. The Department clearly had those potential suits in mind and wrote the final regulations so as to bolster its defense to any such suits. The final regulations reflect the Department’s attempt to respond to the many comments it received on the proposed regulations fully and carefully, including justifying its authority under the law to promulgate the detailed regulations. While we will monitor any such litigation, it is impossible to know, prior to the filing of such suits, whether a court will act to enjoin the final regulations before they go into effect.

If you have questions or seek assistance in coming into compliance with the final regulations, please contact the author.

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